23 avril 2019
The controversial and highly debated changes to make working hours more flexible, and thereby a 12 hour day possible, came into force in Austria on 1 September 2018. This article provides a brief overview of the changes.
Since September 2018, the exemption from the Austrian Working Time Acts not only applies to executive employees, but also to other employees who have been assigned significant independent decision-making authority. However, under new rules total working time must not be measurable or determinable in advance. This must be a consequence of the special characteristics of the job and is not fulfilled if it is only left to the discretion of the employee to allocate his/her working time himself/herself. It is therefore highly questionable whether many 'executive employees' who were formerly covered now still fall under the exemption.
The normal working time of eight hours per day and 40 hours per week remains unchanged under Austrian law. But the maximum limits (inclusive of overtime) have been increased up to 12 hours per day and 60 hours per week. Nevertheless, an employee can refuse to work more than ten hours per day or 50 hours per week without providing a reason. In the case of breach, employees can seek compensation or time off in lieu, irrespective of what was agreed in the employment contract.
Flexitime can now be agreed with a normal working period of up to 12 hours a day and 60 hours a week (which is not subject to surcharges like overtime). However, this extension is at the sole discretion of the employee. Moreover, the employee must be allowed to take whole days as time off in lieu as well as to extend the weekend by such time off. Breaches can result in significant fines as well as possible claims for damages. What counts as an admissible restriction in relation to flexitime remains a grey area. It is therefore important that any flexitime arrangements are carefully drafted.
In Austria, rules around work on weekends and public holidays have been relaxed. As such, employees may now work on a maximum of four (non-consecutive) weekends or public holidays per year. A written works council agreement is required (if such council exists), otherwise, individual written agreements must be concluded to deal with specific incidences where weekend or public holiday work is required. Recurring events may only be covered if they are of the same nature (such as particular exhibitions that take place every year at the same time).